Lots of Changes, Lots of Questions (Sorry this is very long)

[mykidsdaddy]

Dear Soc,

You have helped me a lot in the past along with my attorney. I won't rehash the case since I am now dealing with a whole new set of issues, but first I wanted to thank you.

As consisely as I can put it my current situation is this: I am active duty military, but retiring from the service within the next few months. I have never resided in the state with my children due to military obligations.

 When Mom and I divorced, she moved children back to her home state and filed everything from there, and I did consent to the jurisdiction. Now that I am retiring I plan to move to her home state in order to spend more time with my children.

I currently have joint legal custody, she has primary placement. I have physical custody approx. 30% of the time, but I have had to forego some holiday schedules due to military obligations (I have been sent on missions during my parenting time) and financial concerns (I am stationed overseas and am fully responsible for the costs of transportation which can amount to more than $2000 per trip).

 In practice I have used my parenting time as often as posible, and have had my children with me more than 3  months per year since the divorce 5 years ago. I do call my children without fail twice a week, and we generally speak for an hour or more each time. We all send letters back and forth at least once or twice a week, email daily and otherwise have lots of contact. (I just want to illustrate that I am not an "absent father"so there should be no "reunification" issues or anything like that.)

 I have paid my child support through military allotments- never late, never short and have never missed a payment. I am paying state guidelines plus medical. When the children are with me I provide all clothes (which I send home with them so esentially I am providing more than half of their clothing) all toys/electronics/personal items (which they keep with them so I am providing a good portion of their entertainment as well.) I also provide lots of presents, toys, clothes and anything else they want or need throughout the year.

 This brings me to the current situation: Now that I am getting out of the military and moving to their state I am planning to petition for shared custody (50/50). My lawyer seems to feel that this is perfectly reasonable and should be a fairly "routine" modification (if such a thing exists!) I am not so confident and am really looking for second opinions or strategies that might help me.

Right now the game plan is make nicey-nice with Mom, and hope that she agrees to the parenting plan that I have submitted to her for her review. From experience I know this will not happen.

 The plan I have submitted to Mom is equal parenting (50/50) week on, week off with additional holiday time (alternating holidays).
      Mom gets her birthday, Mother's Day weekend, etc. I get my birthday, Father's Day weekend etc. Additional 2 week blocks for vacations twice a year to be taken at parent's discretion with 30 day notice to the other as long as it does not interfere with holiday schedules.
     Split expenses for everything; Mom buys clothes, food, all incedentals for her time, I buy all clothes, food incedentals for my time. School fees, school lunches, school supplies, medical care (I will still provide health insurance), extracurricular activites etc. paid half each (theoretically ending the need for child support payments by or to either parent.)
      In addition I included a clause that the children may choose to spend time with either parent regardless of allocated parenting time  and their belongings are theirs to leave at either house or carry with them as they see fit. (The children are 9, 13, and 16)

I feel that it is a good and fair plan, but of course I do not expect Mom to see it the same way.

 I have recently found out a few things that concern me in regards to actually making the modification to our parentling plan: Mom is no longer working and is seeking disability (I have no idea why or if her illness- or whatever- impacts her parenting obligations in any way.) Mom is moving to another city (with my knowlege and I will move to her new city upon implemenation of the new plan) which is much more expensive as far as costs of living are concerned. And she now has my children receiving "reduced lunches" at their schools which means her household income has greatly decreased. Her lawyer has dropped her as a client (I do not know why or if she "fired" him; all I know is that he has submitted a letter withdrawing from her case.)

      So now if you are still with me here- I know this is way too long! My questions are:

1.  In your experience (or through your ESP if available ;-) ) do I stand a chance of getting the plan outlined above if Mom contests it and it goes to a hearing?

    1a.  Does Mom have to have a reason to not want shared placement/equal parenting or can she simply say no without explaining why?

    1b.  Is the burden on me to show why shared parenting is in the children's best interest or will she have to show that it is not?

2.  If Mom does not have an attorney, will one be appointed for a parenting plan modification only or will she be on her own? I am hoping that if she cannot afford a lawyer that she will be agreeable to mediation or otherwise keep this from going to a hearing.

3.  Will proving that I can better financially support the children (get them off the reduced lunch program) be better for me in obtaing more parenting time or will that just backfire and cause an increase in child support?

4.  Is there anything I am missing? I am working from the "fair" and "best for the children in my opinion" angles, but I know the law does not always go with fair especially when status quo has been established. Do you see any obvious hurdles that I am overlooking?

Any other advice or suggestions you may have would be appreciated. Thank you for your time reading this!

Always,
My Kids' Dad
       
     

     

[socrateaser]

>      So now if you are still with me here- I know this is way
>too long! My questions are:
>
>1.  In your experience (or through your ESP if available ;-) )
>do I stand a chance of getting the plan outlined above if Mom
>contests it and it goes to a hearing?

If you can show that the other parent is affirmatively acting against the child(ren)'s best interests, or is too disabled to care for the kids, you may be able to get more time with the kids, or if the 16 year old wants to live with you, but otherwise, nothing will change, so don't squander your money trying.

>
>    1a.  Does Mom have to have a reason to not want shared
>placement/equal parenting or can she simply say no without
>explaining why?

The burden is on you to prove that it's in the child(ren)'s best interest for you to have more parenting time.

>
>    1b.  Is the burden on me to show why shared parenting is
>in the children's best interest or will she have to show that
>it is not?

You.

>
>2.  If Mom does not have an attorney, will one be appointed
>for a parenting plan modification only or will she be on her
>own? I am hoping that if she cannot afford a lawyer that she
>will be agreeable to mediation or otherwise keep this from
>going to a hearing.

On her own. If she can't afford an attorney, the court can order you to pay her fees.

>
>3.  Will proving that I can better financially support the
>children (get them off the reduced lunch program) be better
>for me in obtaing more parenting time or will that just
>backfire and cause an increase in child support?

Backfire.

>4.  Is there anything I am missing? I am working from the
>"fair" and "best for the children in my opinion" angles, but I
>know the law does not always go with fair especially when
>status quo has been established. Do you see any obvious
>hurdles that I am overlooking?

The big issue is the ex's disability. If she's too disabled to work, then the question is how can she raise the kids, effectively. That would be your best argument. You could still lose -- depends on the nature of the disability and how it may affect the kids.

>Any other advice or suggestions you may have would be
>appreciated. Thank you for your time reading this!

Establish yourself in the locale, be non-threatening to the ex and available to the kids. Get everyone to trust you, and you may be able to exercise more time without a fight.

[mykidsdaddy]

>The burden is on you to prove that it's in the child(ren)'s
>best interest for you to have more parenting time.

>The big issue is the ex's disability. If she's too disabled to
>work, then the question is how can she raise the kids,
>effectively. That would be your best argument. You could still
>lose -- depends on the nature of the disability and how it may
>affect the kids.

This is what I figured. To my mind it is a no brainer that it is in the kids' best interest to be with both parents equally, but I know that won't fly in a courtroom.  

All I really have right now is that the kids need to be with their Dad more often because they do; they all miss an extraordinary amount of school each year (more than 15 days last semester and have only been to school 2 of the 5 school days so far this year) and I would ensure they attend school regularly. I also have some flimsy evidence of parental alienation  and that Mom has actively tried to prevent a relationship with me while I would (and do) act to ensure they maintain a solid relationship with her. Not much to work with, huh?

1. What arguments would the court entertain (just as examples) to show an increase in parenting time is the best thing for them?

2. Is there any way (short of depositions/discovery before a trial) to find out what Mom's disability is if she refuses to tell me? Could my lawyer ask her and expect an answer or is this considered confidential information?

3. I want to keep the kids out of the fight as much as I can. They all know my intentions (50/50) and are excited by the idea and have said they look forward to living with me half the time. Can I get their input submitted as part of the case without having to call them into court (which I will not do as that is most certainly NOT in their best interests)? Or can I disregard their input and protest if Mom tries to call them into court? I am sure that what they would have to say would be favorable for me, but I do not want to put them throught that kind of stress.

 Thanks!

Always,
My Kids' Dad

[socrateaser]

>1. What arguments would the court entertain (just as examples)
>to show an increase in parenting time is the best thing for
>them?

State law usually enumerates factors that the court must consider for establishment of parenting. Those same factors will be considered in any modification. However, the court is free to give whatever weight it deems appropriate to any factor, so it's just a starting point.

Reality is that you must show the other parent acting in some manner that is detrimental to the kids, and that she is taking this action either intentionally or negligently, that the behavior harm's the child(ren)'s best interests, and that it is unlikely to stop, even by court order.

In short, you are probably wasting your time, unless there's a big smoking gun out there. Which is why I'm suggesting that you arrange your life so that you are available to the kids and hopefully they will simply start spending more time with you than with their mom, and then once you have established a different status quo, you can ask for a change to reflect what has in fact already occurred.

>2. Is there any way (short of depositions/discovery before a
>trial) to find out what Mom's disability is if she refuses to
>tell me? Could my lawyer ask her and expect an answer or is
>this considered confidential information?

It's relevant evidence, if it tends to prove or disprove the parent's ability to act as the day-to-day caretaker of the child(ren). However, the likelihood that your ex will tell the truth if that truth is determental to her case is pretty low, and you cannot obtain the info from her physician, because the records are inadmissible under the laws of evidence.

But, if you can get the parent to admit that she is not working due to her disability, that should be sufficient to get the court to order her evaluated by a physician for the purpose of litigation, so as to ascertain the extent and relevancy of her disability for custody (and possibly for support purposes, depending upon whether the uniform guidelines of the state in question are calculated based on the income or earning capacity of both parents).

>
>3. I want to keep the kids out of the fight as much as I can.
>They all know my intentions (50/50) and are excited by the
>idea and have said they look forward to living with me half
>the time. Can I get their input submitted as part of the case
>without having to call them into court (which I will not do as
>that is most certainly NOT in their best interests)? Or can I
>disregard their input and protest if Mom tries to call them
>into court? I am sure that what they would have to say would
>be favorable for me, but I do not want to put them throught
>that kind of stress.

If you convince the court that there is reason for a custody action, then an evaluator will likely be appointed and the kids will be interviewed to attempt to determine their best interests as well as their desires.